Court name
Supreme Court of Zimbabwe
Case number
SC 55 of 2003
Civil Appeal 265 of 2002

Tewe v Hanoki and Others (65/02) (SC 55 of 2003, Civil Appeal 265 of 2002) [2004] ZWSC 55 (09 February 2004);

Law report citations
Media neutral citation
[2004] ZWSC 55
















DISTRIBUTABLE
(46)


Judgment
No. SC 55/03


Civil
Appeal No. 265/02








VIOLET
TEWE v





(1)
ANDERSON HANOKI (2) CLEVERSON MAKHWALA


(3)
CONSTANCE MAKHWALA (4) THE REGISTRAR OF DEEDS








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
SEPTEMBER 8, 2003 & FEBRUARY 10, 2004








O
Ziweni
,
for the appellant





No
appearance for the first respondent





R
Mapondera
,
for the second and third respondents





No
appearance for the fourth respondent





ZIYAMBI
JA: The appellant in this matter filed a court application in the
High Court claiming –





That
the sale of the immovable property, being stand no. 407
Kambuzuma Township, Harare, be rescinded;





That
the transfer of the said property to the second and third respondents
be annulled;





That
the fourth respondent cause such amendment to be reflected in his
records.





Alternatively,
in the event that the court found itself unable to grant to the
applicant (now the appellant) the order sought in paras
1 and 2
above, the appellant sought an order for the first respondent to pay
her full share from the current market value of the
said property or
such fraction of its value as the court may deem fit in the
circumstances.





The
learned judge who heard the application was unable to decide the
matter on the papers by reason of the disputes of fact on the
papers.
He accordingly referred the matter to trial.





At
the pre-trial conference held in October 2001 the matter was referred
to trial on the following issues:






“(i) Whether the first
defendant was entitled to sell stand no. 407 Kambazuma as he did
or not;





(ii) Whether
the second and third defendants are innocent purchasers or not;





(iii) Whether
the plaintiff is entitled to a percentage of the net proceeds and if
so how much;





(iv) Whether
the plaintiff should give vacant possession to the second and third
defendants or not.”






Most
of the facts of this matter were common cause. The appellant and
the first respondent were married in 1955. In 1964 they
purchased
the property in question (“the property”). The property was
registered in the first respondent’s name. Extensions
were made
to the property and by the time the first respondent left the
matrimonial home in 1968 it was a six-roomed house. The
appellant
and the first respondent were divorced in 1984. The property was
paid up in full and the first respondent advertised
it for sale
through estate agents in the newspapers. The second and third
respondents responded to the newspaper adverts and the
first
respondent, acting through the estate agent, sold the house to the
second and third respondents on 27 March 1998 for the
sum of
$220 000.00. On 19 June 1998 the property was transferred
to the second and third respondents. It is common
cause that the
appellant was not consulted when the sale took place, nor did she
receive a share of the proceeds.





The
appellant gave evidence that after the first respondent left the
matrimonial home in 1968, she single-handedly constructed a
further
two rooms on the property at a cost of $20 000.00 - $30 000.00
and since 1968 she had been paying all the Council rates
and rentals
as well as the balance of the purchase price due to the Council on
the property.





The
appellant was of the view that the price of $220 000.00, at
which the property was sold, was too low, as the property could
have
fetched a higher price. She told the court that she would like the
first respondent to be ordered to pay her. However, she
understood
that he was unemployed and had no means to pay. In the
circumstances, she wanted the sale of the property rescinded.
Both
the appellant and the first respondent were employed during the
subsistence of the marriage and she gave her entire earnings
to the
first respondent. The first respondent, she told the court, was not
honest with the second and third respondents when he
sold them the
property and they were unaware of the dispute between herself and the
first respondent.





The
learned judge was impressed by the appellant. He believed her
evidence but found that she had failed to prove that the property
was
sold at an unreasonably low price. As against the first respondent
he found that she was entitled to a 50% share of the matrimonial
property.





Regarding
the claim against the second and third respondents, the learned judge
was aware that in order for the appellant to succeed
she had to prove
they were guilty of fraudulent intent, in that they were aware of her
claim at the time of purchase of the property
and intended to defeat
her rights therein. The learned judge found that the second and
third respondents were not guilty of fraudulent
intent as they were
not aware of the appellant’s rights in the matrimonial home. They
were
bona fide
purchasers of the property.





Since
the rights of husband and wife are personal and do not as a matter of
law affect third parties, for the appellant to succeed
against the
second and third respondents she had to show not only that they were
aware of her rights in the property but that they
were attempting to
defeat her rights therein. See
Muzanenhamo
& Ano v Katanga & Ors

1991 (1) ZLR 182 (S) at pp 186G-187A where McNALLY  JA
stated:





“It
might have been different if he had been attempting to defeat her
claim for relief in matrimonial proceedings. But I do not believe
that a wife can raise such a claim just because the husband is
disposing of an asset. There must be some evidence that he is
disposing
of the asset ‘at undervalue to a scoundrel, the
accomplice of the husband’ (
Chhokar
v Chhokar
1984 FLR
313), or that in some way he is attempting to defeat her just
rights.”





See
also
National
Provincial Bank Ltd v Ainsworth

[1965] 2 All ER 472 at 485G where LORD UPJOHN remarked:





“So,
as a matter of broad principle, I am of the opinion that the rights
of husband and wife must be regarded as purely personal
inter
se
and that these
rights as a matter of law do not affect third parties.”





Thus,
in the words of LORD HODSON at p 479B of the same report:





“Where
there is a genuine transfer, there is no reason why the wife’s
personal rights against her husband, which are derived from
her
status, should enter the field of real property law so as to clog the
title of an owner.”





See
also
Cattle Breeders
Farm (Private) Limited v Veldman (2)

1973 (2) RLR 261.




The
evidence of the second and third respondents was that they responded
to an advertisement in the newspaper. They saw the estate
agent,
who took them to view the property but they could not enter therein
as there was no-one at the house. They were, however,
satisfied
with what they saw and decided to purchase the property. They did
not meet with the seller prior to the conclusion of
the sale. They
dealt with the estate agent throughout and were not aware of the
dispute between the appellant and the first respondent
regarding the
property. They agreed to pay the appellant for the additional two
rooms which she had constructed on the property.





The
learned judge in the court
a quo
believed this evidence and found that the second and third
respondents were unaware of the appellant’s claim and rights to the
property at the time of the purchase thereof and therefore had no
fraudulent intent. He was satisfied therefore that the appellant
had no claim against the second and third respondents.





Accordingly,
the learned judge found that the first respondent was entitled to
sell the property; that the second and third respondents
were
innocent purchasers; that the appellant was entitled to 50% of the
net proceeds realised from the sale of the matrimonial home;
and that
the appellant should give vacant possession of the property to the
second and third respondents. The appellant’s main
claim was
dismissed but the alternative claim was granted.





The
appellant appealed to this Court. She attacked the finding of the
learned judge that the second and third respondents were
bona
fide
purchasers. She
also attacked the award of 50% of $220 000.00 as being a serious
under-valuation of the property. The appellant
sought an order
cancelling the sale of the house by the first respondent to the
second and third respondents. In the alternative
the appellant
prayed:





“That
she effects restitution to the second and third respondents of the
purchase price paid to date, by them, to the first respondent
so that
the house is fully awarded to her as her rightful and sole property”.





A
reading of the evidence, as well as the judgment of the court
a quo,
reveals no misdirections. The learned judge found that it was
understandable that the second and third respondents did not suspect
the existence of a dispute between the appellant and the first
respondent as the sale was properly and publicly advertised in the
media by an estate agent and was concluded through that estate agent.





The
appellant adduced no evidence that the second and third respondents
were aware of her claim on the property. In cross-examination
she
conceded that they were unaware of her rights and that the first
respondent was not honest with them. Thus, the finding of
the court
a quo
cannot be faulted.





The
award made to the appellant was 50% of the net proceeds of the sale
of the matrimonial home. It was common cause that the
property was
sold for $220 000.00. The appellant did not adduce any
evidence, nor was there any on the record, to prove that
the value of
the property was greater than the sum of $220 000.00. It was
the duty of counsel for the appellant to place before
the court
evidence in support of the allegation that the property was worth
more than the price realised for it. This the legal
practitioner
failed to do and the court acted on the basis of the evidence before
it.





The
alternative prayer in the notice of appeal amounted to an entirely
new claim – one which was not raised in the court below.
Besides,
the court having dismissed the appellant’s claim against the second
and third respondents, there was no basis on which
we could grant the
order sought.





Accordingly
the appeal is devoid of merit and is hereby dismissed with costs.





CHIDYAUSIKU
CJ: I agree.





MALABA
JA: I agree.





Ziweni
& Co
, appellant's
legal practitioners


Mapondera
& Co
, second and
third respondents' legal practitioners